Institute for International Law and JusticeEmerging Scholars Papers

IILJ Emerging Scholars Paper 14 (2009)(A sub series of IILJ Working Papers)

PRIVILEGES AND IMMUNITIES OF GLOBAL PUBLIC-PRIVATE PARTNERSHIPS: A CASE

STUDY OF THE GLOBAL FUND TO FIGHT AIDS, TUBERCULOSIS AND MALARIA

DAVINIA ABDUL AZIZNew York University School of Law

Faculty Director: Robert Howse Institute for International Law and JusticeCo-Directors: Philip Alston and J.H.H. Weiler New York University School of LawProgram Director: Angelina Fisher 40 Washington Square South, VH 314Faculty Advisory Committee: New York, NY 10012Philip Alston, Kevin Davis, David Golove, Robert Howse, Website: www.iilj.orgBenedict Kingsbury, Martti Koskenniemi, Mattias Kumm, Linda Silberman, Richard Stewart, J.H.H. Weiler, Katrina Wyman

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without permission of the author.

ISSN: 1552-6275© DAVINIA ABDUL AZIZ

Emerging Scholars Papers are issued at the responsibility of their authors, and do not reflect views of NYU, the IILJ, or associated personnel.

New York University School of LawNew York, NY 10012

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Cite as:IILJ Emerging Scholars Paper 14 (2009)(A Sub series of IILJ Working Papers)

Finalized 8/4/2009

Privileges and Immunities of Global Public-Private Partnerships: A Case Study of the Global Fund to Fight AIDS, Tuberculosis and Malaria

Davinia Abdul Aziz

Abstract The question of whether it is at all appropriate to extend privileges and immunities regimes beyond international organizations to the increasingly ubiquitous global public-private partnership structure has received little attention to date in the scholarly literature. This article examines this question through a study of the Global Fund to Fight AIDS, Tuberculosis and Malaria, a permanent global public-private partnership that formally incorporates non-state actors as equal players in its core governance structures. The article concludes that considerations of genesis and administrative law-type analyses of institutional design may, to some extent, substitute for the constituent treaty of classical international law in order to identify which global public-private partnerships should benefit from privileges and immunities, as well as the specific privileges and immunities to be granted in each case to facilitate the effective fulfilment of these partnerships’ mandates.

Keywords: privileges and immunities; global public-private partnerships; global health governance; multi-actor funds

LL.M., New York University School of Law (2009); B.C.L., University of Oxford (2005); LL.B. (Hons.),

National University of Singapore (2002). Thanks are due to Professor Benedict Kingsbury and Lorenzo Casini, whose comments greatly improved early drafts. In addition, this article benefited from the input of Professor Philip Alston, Nina Blum, Doreen Lustig, Sanja Popovic, Arie Rosen, Bernard Eelco Szabo, and the organizers and participants of the New York University School of Law Institute for International Law and Justice/University of Geneva Conference on Practical Legal Problems of International Organizations (University of Geneva, 20-21 March 2009), and the International Legal Studies LL.M. Colloquium (New York University School of Law, 26 March 2009), especially Ravi S. Mehta. All the usual disclaimers apply. E-mail: davinia.aziz@alumni.nus.edu.sg.

Privileges and Immunities of Global Public-Private Partnerships: A Case Study of the Global Fund to Fight AIDS, Tuberculosis and Malaria

1. Introduction The problem examined in this article presents an apparent collision between traditional public international law doctrine and current patterns of global governance characteristic of what some scholars posit as “the global administrative space.”1 As a general rule, the law of privileges and immunities is constructed on the idea of international organization as intergovernmental organization.2 Typically, privileges and immunities regimes (“P&I regimes”) are conferred on international organizations constituted by treaty. P&I regimes are further premised on the notion that the member states of an international organization mutually commit to the attenuation of domestic jurisdiction so as to facilitate that organization’s articulated purpose, as set out in its constituent treaty.3 In short, and to reduce the proposition to aphoristic terms, P&I regimes inhabit the paradigm of Westphalia.

By contrast, the “global administrative space”4 is populated by entities that do not comport with classical notions of international organization. These entities reach beyond state participation to include non-governmental organizations (“NGOs”), corporate actors and individuals.5 In this respect, the case study in this article is probably archetypal. As its name implies, the Global Fund to Fight AIDS, Tuberculosis and Malaria (“the Global Fund”) is an international financing institution that makes grants for in-country programmes to prevent and treat HIV/AIDS, tuberculosis and malaria.6 The significance of the Global Fund is that it is a permanent hybrid arrangement that formally incorporates non-state actors as equal players in its core governance structures.7 As distinct from more

1 B. Kingsbury et al, “The Emergence of Global Administrative Law”, 68 Law and Contemporary

Problems (2005) p. 18. 2 This is not to say that the participation of non-state entities ipso facto precludes the definition of an

organization as an “international organization” at international law: the European Communities’ membership of the World Trade Organization and the employer/employee/government constituencies of the International Labour Organization are oft-cited examples. Indeed, Article 2 of the UN International Law Commission’s Draft Articles on the Responsibility of International Organizations allows that international organizations may include “other entities” apart from states among its membership. However, the draft still adopts, as its primary definition of “international organization”, “an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality.” Of particular significance for the purposes of the present discussion is the fact that organizations established under municipal law are decidedly not part of the International Law Commission’s understanding of international organizations: see Report of the International Law Commission on the work of its fifty-fifth session (A/57/10), p. 40, and the discussion of the Global Fund’s legal arrangements under Swiss law in section 2.2.1, infra.

3 See the discussion in section 3.1.2, infra. 4 Kingsbury et al, supra note 1, p. 18. 5 Kingsbury et al, supra note 1, p. 20. 6 The Global Fund, About the Global Fund, <www.theglobalfund.org/en/about/>, visited on 8 March 2009. 7 “Hybrid intergovernmental-private arrangements” are posited as one of several “ideal” categories of

globalized administrative regulation by Kingsbury et al in order to facilitate further inquiry: see Kingsbury et al, supra note 1, p. 20.

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casual or transactional-type public-private collaboration,8 then, the Global Fund is an institutionalized global public-private partnership9 in the fullest sense.

The Global Fund does not implement the in-country programmes that it finances. However, the nature of its activities and the scale of its grants10 are perceived to translate to significant liability exposure for the organization and its officials, which, in turn, gives rise to the perception that P&I regimes are necessary for the effective fulfilment of the organization’s mandate.11 For example, the type of programmes financed by Global Fund grants may render tortious claims plausible. Two scenarios may be briefly cited here. In 2004, an article in The Lancet alleged that Global Fund malaria grant policy in Senegal and Kenya amounted to “medical malpractice”, and that it contravened World Health Organization (“WHO”) guidelines.12 In 2008, poor supply chain management in India put Global Fund-financed drugs and health supplies at risk of compromised efficacy.13 These facts resemble those that culminated in a finding of liability against UNICEF by the High Court of Assam in 2003. That suit arose from deaths alleged to have resulted from the administration of UNICEF-supplied vitamin A supplements to children.14

As such, grafted onto the Global Fund’s novel institutional structure are the kinds of P&I regimes associated with international organizations in the Westphalian mode. In Switzerland and the United States, the Global Fund is accorded privileges and immunities

8 Two examples are the World Health Organization’s Tobacco-Free Initiative

(http://www.who.int/tobacco/global_interaction/en/), which involves NGOs and civil society in work on tobacco control, and the United Nations Global Compact (http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/index.html), which is a policy initiative designed to align corporate activity with certain “universally-accepted principles” in the areas of human rights, labour, the environment and anti-corruption. Neither is institutionalized along the lines of the Global Fund.

9 Here, I use the term “global public-private partnership” to indicate a transnational collaborative relationship involving both state and non-state actors (including NGOs, corporate actors and private foundations) constituted to achieve certain shared goals.

10 As at the time of writing, the Global Fund had committed approximately USD 15.6 billion in grants to programmes in 140 states: see The Global Fund, Homepage, <www.theglobalfund.org/en/>, visited on 15 June 2009. For detailed information on grant commitments and disbursements, see The Global Fund, Commitments and Disbursements, <www.theglobalfund.org/en/commitmentsdisbursements>, visited on February 20 2009.

11 Ibid. For information on liability exposure, see The Global Fund Secretariat, Report on Legal Status Options for the Global Fund, GF/B4/12, 29-31 January 2003, p. 3, <www.theglobalfund.org/documents/board/04/GF%20B4%2012%20Legal%20Status%20Report.pdf>, visited on 9 June 2009 [hereinafter “Report on Legal Status Options”].

12 Amir Attaran et al, “WHO, the Global Fund, and Medical Malpractice in Malaria Treatment”, 363 The Lancet (2004) p. 238 (arguing that Global Fund decisions to finance “cheap but ineffective” chloroquine or sulfadoxine-pyrimethamine instead of artemisinin-class combination therapies for malaria in Senegal and Kenya were “indefensible”).

13 The Global Fund, Office of Inspector-General, Final Audit Report on the Procurement, Supply Chain Management and Service Delivery of the Global Fund’s Grants to the Government of India, Audit Report No. TGF-OIG-08-001, 9 September 2008, p. 12, <www.theglobalfund.org/documents/oig/Final_Audit_Report_India_ProcurementAndSCM_Sep08.pdf>, visited on 9 June 2009.

14 Subhir Baumik, “India child deaths blamed on Unicef”, BBC News, 3 September 2003, <news.bbc.co.uk/2/hi/south_asia/3079438.stm>, visited on 8 March 2009.

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normally reserved for international organizations by a headquarters agreement15 and by domestic legislation16 respectively. As at the time of writing, the Global Fund was actively engaged in seeking to expand the geographic scope of its privileges and immunities.17

Many elements of the Global Fund’s character and institutional design are unprecedented. Not least of these is the fact of equal non-state participation in its governance and decisional processes. Yet, it appears that the question of whether it is at all appropriate to extend P&I regimes to something like the Global Fund has received little attention in the scholarly literature. Given existing critiques of P&I regimes,18 this omission is conspicuous.

In this article, I suggest that the extension of P&I regimes to global public-private partnerships gives rise to normative and doctrinal concerns, so that this extension cannot be justified on instrumental grounds alone. The intuitive response is that these concerns should not be compounded by extending P&I regimes to global public-private partnerships. However, this type of hybrid structure is clearly here to stay—its increasing use partly brought about by a certain loss of faith in the efficacy of Westphalian

15 Agreement between the Swiss Federal Council and the Global Fund to Fight AIDS, Tuberculosis and

Malaria in view of determining the legal status of the Global Fund in Switzerland, 13 December 2004, <www.theglobalfund.org/documents/board/08/gfb87_annex4a.pdf>, visited on 9 June 2009 [hereinafter “the Swiss Headquarters Agreement”]. See also The Global Fund, Global Fund Gains Privileges and Immunities Similar to International Organizations, 13 December 2004, <www.theglobalfund.org/en/pressreleases/?pr=pr_041213>, visited on 20 February 2009. See also section 2.3, infra.

16 Executive Order 13395, 13 January 2006, <edocket.access.gpo.gov/cfr_2007/janqtr/pdf/3CFR13396.pdf>, visited on 9 June 2009 [hereinafter “Executive Order 13395”]; International Organizations Immunities Act, § 288f-6 (Global Fund to Fight AIDS, Tuberculosis and Malaria; extension of privileges, exemptions, and immunities). See also section 2.3, infra.

17 The Global Fund, Report of the Policy and Strategy Committee (GF/B18/4), 7-8 November 2008, p. 11, <www.theglobalfund.org/documents/board/18/GF-B18-04_ReportPSC.pdf>, visited on 19 January 2009 [hereinafter “PSC Report GF/B18/4”]; The Global Fund, Report of the Policy and Strategy Committee (GF/B19/4), 5–6 May 2009, p. 14, <www.theglobalfund.org/documents/board/19/GF-B19-04_ReportofPolicyandStrategyCommittee.pdf>, visited on 15 June 2009 [hereinafter “PSC Report GF/B19/4”]. According to PSC Report GF/B18/4 and PSC Report GF/B19/4, the initial strategy is to secure such privileges and immunities by approaching states with the necessary framework legislation “on the possibility of designating the Global Fund as an organization that enjoys privileges and immunities within their domestic legal systems”: see also the discussion in section 3.3.2, infra. A working group comprising legal advisers of Board members belonging to the Policy and Strategy Committee will also examine other mechanisms for the grant of privileges and immunities, including a multilateral agreement. The working group is to present its proposal at the next meeting of the Global Fund Board in November 2009: PSC Report GF/B19/4, p. 14.

18 These range from critiques that P&I regimes attenuate legal accountability generally, to critiques specific to situations that are said to qualify as abuse of P&I regimes. See, e.g., M. Singer, “Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns”, 36 Virginia Journal of International Law (1995) pp. 53–165; A. Reinisch, “Securing the Accountability of International Organizations, 7 Global Governance (2001) pp. 131–149; K. Wellens, Remedies Against International Organisations (Cambridge University Press, Cambridge, 2002); F. Rawski, “To Waive Or Not to Waive: Immunity and Accountability in UN Peacekeeping Operations”, 18 Connecticut Journal of International Law (2002) pp. 103–132; and E. Gaillard and I. Pingel-Lenuzza, “International Organisations and Immunity From Jurisdiction: To Restrict Or to Bypass”, 51 International and Comparative Law Quarterly (2002) pp. 1–15.

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multilateralism.19 Seen in that light, developing a coherent approach to immunity issues becomes both urgent and compelling. Here, I suggest that considerations of genesis and administrative law-type analyses of institutional design may substitute for the constituent treaty of classical international law in order to identify which global public-private partnerships should benefit from P&I regimes. Further, I argue that P&I regimes, even if appropriate, should be disaggregated: blanket conferrals of P&I regimes are to be avoided if they are not critical to function.

2. The Global Fund This section outlines the genesis, institutional design, decisional processes and operations of the Global Fund. This exercise has a threefold purpose. First, it clarifies the nature and extent of non-state participation in the Global Fund. Second, it delineates those aspects of its institutional design that may be said to roughly assimilate administrative law-type accountability mechanisms. Finally, it indicates some possible points of liability exposure, and how the Global Fund seeks to use P&I regimes to address perceived liability issues. 2.1. Genesis The genesis of the Global Fund is generally traced to the April 2001 African Summit on HIV/AIDS, Tuberculosis and Other Related Infectious Diseases.20 The Summit culminated in the Abuja Declaration on HIV/AIDS, Tuberculosis and Other Related Infectious Diseases, by which the Member States of the Organization of African Unity (as it then

19 The GAVI Alliance is a second global public-private partnership that has secured privileges and

immunities normally reserved for international organizations in Switzerland, and is also the first entity to be accorded such status under the Federal Act on the Privileges, Immunities and Facilities and the Financial Subsidies granted by Switzerland as a Host State (“the Swiss Host State Act”): see GAVI Alliance, GAVI recognized as international institution, <www.gavialliance.org/media_centre/press_releases/2009_06_23_swiss_foundation.php>, visited on 18 July 2009. For an English translation of the Swiss Host State Act, see <www.admin.ch/ch/e/rs/1/192.12.en.pdf>, visited on 18 July 2009. See further the discussion in section 3.3, infra.

20 In his speech to the Summit, then-UN Secretary General Kofi Annan “propose[d] the creation of a Global Fund, dedicated to the battle against HIV/AIDS and other infectious diseases”: the text of this speech is available at <www.africaaction.org/docs01/ann0104.htm>, visited on 9 March 2009. See also the accounts given in The Global Fund, History of the Global Fund, <www.theglobalfund.org/en/history/?lang=en>, visited on 22 December, 2008; The Global Fund, The Global Fund: Who We Are, What We Do, <www.theglobalfund.org/en/publications/whoweare/>, visited on 24 December 2008; A. Triponel, “Global Fund to Fight Aids, Tuberculosis and Malaria: A New Legal and Conceptual Framework for Providing International Development Aid” <papers.ssrn.com/sol3/papers.cfm?abstract_id=1307926>, visited on 9 June 2009; R.W. Copson and T. Salaam, The Global Fund to Fight Aids, Tuberculosis and Malaria: Background and Current Issues, CRS-2 (2005), <www.ncseonline.org/nle/crsreports/05mar/RL31712.pdf>, visited on 1 December 2008; and J. Heimans, Multiactor Funds: New Tools to Address Urgent Global Problems <www.wider.unu.edu/publications/working-papers/research-papers/2004/en_GB/rp2004-047/>, visited on 9 June 2009 (describing then-UN Secretary-General Kofi Annan as a “key instigator” of the Global Fund).

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was) pledged their support for the creation of such a fund.21 In June 2001, Annan’s proposal received the wider imprimatur of the international community, expressed through a General Assembly resolution passed during the June 2001 Special Session on HIV/AIDS.22 Finally, the Group of Eight announced the launch of the Global Fund in July 2001 by a communiqué issued at the end of its Genoa summit.23

Negotiations on the proposed fund’s legal status, governance arrangements, institutional design and eligibility criteria for programme grants were undertaken by a Transitional Working Group.24 The Global Fund’s final institutional design and governance arrangements manifest an interesting tension between the Transitional Working Group’s initial desire to deliberately dissociate from the formal multilateralism of the UN system,25 and the now apparent perception that some trappings of the modern intergovernmental organization—including a fairly substantial permanent Secretariat and a comprehensive privileges and immunities framework26—are nevertheless necessary for the operationalization of the Global Fund’s mandate. 2.2. Institutional design 2.2.1. Overview Following the Transitional Working Group negotiations, the Global Fund was established in 2002 as a private non-profit foundation under Article 80 et. seq. of the Swiss Civil Code.27 It is governed by relevant Swiss law,28 a set of Bylaws29 and a Framework

21 Organization of African Unity, Abuja Declaration on HIV/AIDS, Tuberculosis and Other Related

Infectious Diseases (OAU/SPS/ABUJA/3), para. 29, <www.un.org/ga/aids/pdf/abuja_declaration.pdf>, visited on 9 June 2009.

22 Declaration of Commitment on HIV/AIDS (U.N. Doc. A/Res/S-26/2), paras. 90-1. The Declaration both endorsed “the establishment, on an urgent basis, of a global HIV/AIDS and health fund” financed from public and private sources, and linked the establishment of the proposed fund to the effective realization of the Millennium Development Goals, which have their own inception in another soft law instrument, the United Nations Millennium Declaration (U.N. Doc. A/Res/55/2). The eradication of HIV/AIDS and other infectious diseases is listed as Millennium Development Goal 6: see United Nations Millennium Development Goals, Goal 6: Combat HIV/AIDS, Malaria and Other Diseases, <www.un.org/millenniumgoals/aids.shtml>, visited on 17 February 2009.

23 Group of Eight, Communiqué (22 July 2001), para. 15, <http://www.g7.utoronto.ca/summit/2001genoa/finalcommunique.html >, visited on 9 June 2009.

24 The meeting and consultation documents of the Transitional Working Group are available at <theglobalfund.org/en/twg/>. The Transitional Working Group consisted of about 40 representatives of developing and donor states, NGOs, the private sector and UN agencies: see The Global Fund, Transitional Working Group, <theglobalfund.org/en/twg/>, visited on 20 February 2009.

25 According to Heimans’ empirical study (supra note 20), hostility toward the UN system, including the WHO, was palpable during the negotiations: Heimans, supra note 20, p. 3. This story is also borne out by Transitional Working Group meeting documents (“Other members would prefer total independence from existing organizations. This was regarded as critical to establish public confidence.”): see Second Meeting of the Transitional Working Group, p. 4, <theglobalfund.org/documents/twg/TWG_2nd_Meeting-report_011112ehmer_redlline.pdf>, visited on 20 February 2009.

26 David Sullivan, “International Coalitions of the Willing”, 99 Proceedings of the American Society of International Law (2005) p. 246.

27 The Global Fund, Report on Legal Status Options for the Global Fund (GF/B4/12), <http://www.theglobalfund.org/documents/board/04/GF%20B4%2012%20Legal%20Status%20Report.pdf>, visited on 9 June 2009.

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Document.30 Article 4 of the Global Fund’s Bylaws provide for it to “remain in operation indefinitely.”

On its website, governing documents and publicity material, the Global Fund is described as “an international financing institution” and “a unique public-private partnership dedicated to attracting and disbursing additional resources to prevent and treat HIV/AIDS, tuberculosis and malaria.”31 At its inception, the Global Fund had close institutional links with the WHO, which provided Secretariat staff and other services under an Administrative Services Agreement (“the ASA”), and with the World Bank, which held Global Fund grant moneys on trust under a Trusteeship Agreement. The World Bank continues to play the trusteeship role, but the ASA was terminated at the end of 2008. The Global Fund therefore became an administratively autonomous institution on 1 January 2009.32

Per the Bylaws, the core structures of the Global Fund are the Foundation Board (referred to here as “the Board”), the Secretariat, the Partnership Forum and the Technical Review Panel.33 The Board has established two other governance structures: the Technical Evaluation Reference Group (“ the TERG”) in 2003, and the Office of Inspector-General (“the OIG”) in 2005. The TERG is an expert group that advises the Board on a wide range of issues, including organizational efficiency and monitoring of grant performance.34 The OIG performs internal oversight functions.35 The details of these structures are set out at Figure 1. 2.2.2. Geneva governance structures Apart from the OIG, the TERG and the Technical Review Panel, the institutional design of the Global Fund might be broadly analogized—but with some important qualifications—to the traditional tripartite structure of the modern intergovernmental organization.36

The Bylaws do not give the Partnership Forum all of the powers of the plenary body of an intergovernmental organization as conventionally understood. The Partnership Forum does not, for example, have the legal competence to adopt decisions for the Global Fund. However, a limited analogy may be drawn to the extent that the Partnership Forum

28 To the extent that the normal operation of Swiss law is modified under the Swiss Headquarters

Agreement, supra note 15. 29 The Global Fund, Bylaws, <www.theglobalfund.org/documents/TGF_Bylaws_en.pdf>, visited on 19

January 2009 [hereinafter “Bylaws”]. 30 The Global Fund, Framework Document, <www.theglobalfund.org/documents/TGF_Framework.pdf>,

visited on 19 January 2009 [hereinafter “Framework Document”]. 31 The Global Fund, Homepage, <www.theglobalfund.org/en/>, visited on 1 January 2009; The Global

Fund, About the Global Fund, <www.theglobalfund.org/en/about/?lang=en>, visited on 19 February 2009.

32 The Global Fund, The Global Fund Becomes an Administratively Autonomous Institution as of 2009, <theglobalfund.org/en/pressreleases/?pr=pr_081219>, visited on 24 December 2008.

33 Bylaws, supra note 29, Article 5. 34 The Global Fund, Technical Evaluation Reference Group, <theglobalfund.org/en/terg/?lang=en>, visited

on 9 March 2009. 35 The Global Fund, Office of Inspector-General, <www.theglobalfund.org/en/oig/?lang=en>, visited on 19

February 2009. See also the discussion at the end of section 2.2.2, infra. 36 On this tripartite structure, see José E. Alvarez, International Organizations as Law-Makers (Oxford,

Oxford University Press, 2006) p. 9.

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is a locus for stakeholder discussion of Global Fund policy.37 Given the Global Fund’s founding principles,38 the Partnership Forum obviously reaches beyond states to include “stakeholders that actively support [the Global Fund’s] objectives”.39 These range from donor representatives, multilateral development cooperation agencies, civil society, NGO and community-based organizations, technical and research agencies, and the private sector.40 The Global Fund describes the Partnership Forum as “a process, not an event”, consisting of online discussions, consultations and meetings for invited stakeholders.41 There is a tangible deliverable in the form of written policy recommendations to the Board, issued after the Partnership Forum’s biennial plenary meetings.42 In design, at least, these arrangements evince the theory that Global Fund policies should be responsive to the interests of affected constituencies.

The 24-member Board is the supreme governing body.43 There are 20 voting members, with one vote each, and four ex officio members. For quorum and decision-making purposes, the voting membership is split into two groups: the first consisting of donor states, the private sector and private foundations (“the donor voting block”), and the second consisting of developing states and NGOs (“the implementer voting block”). The Bylaws provide that the Board should use its “best efforts” to take decisions by consensus. If it proves necessary to put a decision to a vote, then a two-thirds majority of both voting blocks is required for a motion to pass.44

The Global Fund Secretariat is based in Geneva. It is responsible for the daily operations of the Global Fund, and is headed by an Executive Director selected by the Board on merit.45 Among other things, the Secretariat organizes the receipt and review of

37 Ibid. 38 These are set out in Section III (Principles) of the Framework Document, supra note 30, and at The

Global Fund, How the Global Fund Works, <www1.theglobalfund.org/en/how/?lang=en>, visited on 19 January 2009.

39 Bylaws, supra note 29, Article 6.1. See also Sullivan, supra note 26, p. 245. 40 Ibid. 41 The Global Fund, Partnership Forum, <www.theglobalfund.org/en/partnershipforum/?lang=en>, visited

on 24 December 2008. 42 See, e.g., Recommendations from the Global Fund Partnership Forum (8-10 December 2008),

<www.theglobalfund.org/documents/partnershipforum/2008/PF2008_Recommendations.pdf>, visited on 20 February 2009.

43 Bylaws, supra note 29, Article 7.4. The Board meets at least twice a year. Meeting documents and Board decisions are disseminated through the Global Fund website at <theglobalfund.org/en/board/decisions/?lang=en> and <theglobalfund.org/en/board/meetings/?lang=en>, visited on 20 February 2009.

44 Bylaws, supra note 29, Article 7.6. The Chair and Vice-Chair of the Board are elected by the voting membership from its number in accordance with the voting procedure set out in the main text. The current Chair is Rajat Gupta, a senior partner at McKinsey & Company and the private sector representative. The current Vice-Chair is Elizabeth Mataka, the Executive Director of Zambia National AIDS Network and the developing state NGO representative. Although this is not provided for in the Bylaws, appears that there is a practice to have Chair from donor constituency, and Vice-Chair from implementor constituency: see L. Aspinall, J. Wittebrood and J.A. Tiendrebeogo, Global Fund Governance and Constituency Processes, (8 December 2008), <www.theglobalfund.org/documents/partnershipforum/2008/presentations/0812/C1/3pm/PF%20pres.ppt>, visited on 25 February 2009.

45 Bylaws, supra note 29, Article 8.1. The current (and second) Executive Director, Dr. Michel D. Kazatchkine, is a French immunologist. Before succeeding Sir Richard Feachem in April 2007, Dr.

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grant applications, the negotiation of grant agreements, commissions the Technical Review Panel, and communicates the Board’s decisions to stakeholders.46 The Secretariat now numbers approximately 470,47 but the Transitional Working Group initially envisaged a very lean Secretariat numbering no more than “12-15 professionals with associated support staff.”48 The idea was that the Secretariat “should not be so small that it can’t do its job, but not so large that it grows into a new organization”.49 Given these considerations, and to address concerns that the administration of the Global Fund should be protected from liability, the Global Fund entered into the ASA at the outset of its operations in 2002.50

It appears that ASA was always meant to be a temporary arrangement.51 Nevertheless, the ASA created some real conflict of interest issues for Global Fund Secretariat staff concurrently serving as WHO officials. These concerns are reflected in Board meeting documents recording the anxiety of WHO officials over this problem of “dual governance”, noting the private and non-governmental elements on the Board, and that WHO officials could not be expected to “serve two masters”.52 The termination of the ASA meant, of course, that the Global Fund could no longer rely on WHO privileges and immunities (such as they were) for Global Fund staff on official travel outside Switzerland and the United States.

Finally, the oversight functions of the OIG invite parallels with the internal oversight mechanisms of other international organizations, such as the World Bank Integrity Vice-Presidency53 and the UNHCR Inspector-General.54 The OIG is an independent unit that reports directly to the Board. It has two main areas of responsibility: investigation of possible fraud, misappropriation, corruption or mismanagement of funds, on the one hand, and audit and inspection of Global Fund activities and transactions on the

Kazatchkine served as Chair of the Technical Review Panel, and as Vice-Chair of the Board: The Global Fund, Executive Director, <theglobalfund.org/en/secretariat/director/>, visited on 20 February 2009.

46 Bylaws, supra note 29, Article 8.2. 47 The Global Fund, Secretariat, <www.theglobalfund.org/en/secretariat/>, visited on 9 June 2009. 48 Third Meeting of the Transitional Working Group, Annex 1: Governance, p. 4 (Dec. 14, 2001),

<www.theglobalfund.org/documents/twg/1-Governance.pdf>, visited on 20 February 2009. 49 Final Report of the First Meeting of the Transitional Working Group to Establish a Global Fund to Fight

AIDS, Tuberculosis and Malaria, (30 October 2001), p. 3, <www.theglobalfund.org/documents/twg/Meeting_report_F_011030.pdf>, visited on 24 December 2008.

50 Sullivan, supra note 26, p. 246. 51 The Global Fund, supra note 32. 52 The Global Fund, Report of the Finance and Audit Committee (31 October–3 November 2006), p. 3

<www.theglobalfund.org/documents/board/14/GF-BM-14_09_ReportFAC.pdf>, visited on 27 October 2008.

53 The World Bank, Integrity Vice Presidency, <web.worldbank.org/WBSITE/EXTERNAL/EXTABOUTUS/ORGANIZATION/ORGUNITS/EXTDOII/0,,contentMDK:20542001~pagePK:64168427~piPK:64168435~theSitePK:588921,00.html>, visited on 9 June 2009.

54 E. de Wet, “Holding International Institutions Accountable: The Complementary Role of Non-Judicial Oversight Mechanisms and Judicial Review”, 9 German Law Journal (2008) p. 1997 (drawing a comparison between the World Bank Department of Institutional Integrity and the UNHCR Inspector General, who investigates misconduct affecting UNHCR beneficiaries, including corruption and other misconduct related to refugee status determination).

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other.55 To date, the OIG has issued four reports.56 The OIG may initiate action of its own accord, but also relies on whistle-blowing procedures for information on possible abuses. These whistle-blowing procedures apply to the Secretariat and the Geneva governance structures,57 as well as to the Global Fund’s in-country partners.58 2.2.3. In-country actors The Global Fund has no country offices apart from its Geneva headquarters. Instead, it relies almost entirely on contracted local partners for in-country implementation and oversight of the programmes it funds. Aspects of the Global Fund grant-making process are set out at Figure 2.

The key actors in-country are the Country Coordinating Mechanism, one or more Principal Recipients per country, and the Local Fund Agent. In line with Section III.C of the Framework Document, which stipulates “national ownership”, the Country Coordinating Mechanism develops and proposes grants based on national priorities.59 Its membership includes both public and private sector representatives. It is responsible for in-country governance of Global Fund grants. It also nominates the Principal Recipient to contract with the Secretariat to receive grants and implement programmes.60 The Principal Recipient may be a national government agency, an NGO, or an international development agency: this essentially appears to be a function of circumstances in the implementer state.61 The Local Fund Agent is an in-country office of an auditing firm that oversees and reviews grant performance to facilitate the Global Fund’s assessment of key indicators that

55 The Global Fund, Office of Inspector General, <theglobalfund.org/en/oig/?lang=en>, visited on 9 June

2009. 56 The Global Fund, Office of Inspector General–Reports, <theglobalfund.org/en/oig/reports/?lang=en>,

visited on 9 June 2009. There is a fifth report on allegations of misuse of a Global Fund bank account with Credit Suisse not listed at this page. However, that report appears to have been somewhat problematic, drawing vigorous disagreement from Global Fund management: The Global Fund, Comprehensive Account of the Reports Related to the Credit Suisse Account (31 May 2007), <theglobalfund.org/documents/board/15/GlobalFund-FinalReport.pdf>, visited on 9 June 2009.

57 The Global Fund, Office of Inspector-General, Whistleblowing Policy for the Secretariat and Governance Bodies of the Global Fund to Fight AIDS, Tuberculosis and Malaria, <theglobalfund.org/documents/oig/Whistle-blowing_Policy_for_the_secretariat.pdf>, visited on 9 June 2009.

58 The Global Fund, Office of Inspector-General, In-country Whistleblowing Policy for the Global Fund to Fight AIDS, Tuberculosis and Malaria, <theglobalfund.org/documents/oig/In-Country-Whistle-blowing_Policy_for_the_Global_Fund.pdf>, visited on 9 June 2009.

59 Section III.C provides that “The Fund will base its work on programs that reflect national ownership and respect country-led formulation and implementation processes.”

60 Some aspects of the standard form programme grant agreement are dealt with further in section 2.3, infra. 61 For example, the Principal Recipient for many grants in Indonesia is the Ministry of Health, while the

Principal Recipient for grants in Myanmar, when they subsisted, was UNDP: see information available at The Global Fund, Advanced Program Search, <theglobalfund.org/programs/search/?lang=en>, visited on 15 June 2009.

9

determine whether programmes should continue to be funded.62 It is contracted to perform these services by the Secretariat through a competitive bidding process.63

Apart from this network of contracts, the Global Fund attempts to buttress the accountability of in-country actors to the Geneva governance structures and affected constituencies in at least two ways, in the absence of clear lines of command-and-control to Geneva. First, the OIG in-country whistleblowing procedure is, in principle, available to “anyone who knows of misconduct associated with Global Fund activity—or who has reasonable grounds for inferring misconduct.”64 Second, the Global Fund issues extensive information and guidance to in-country actors via its website. For example, the Global Fund has had to devise conflict of interest guidance for situations where membership of the Country Coordinating Mechanism overlaps with the Principal Recipient.65 The Country Coordinating Mechanism section of the Global Fund website also links to two “partner websites”. These belong to Aidspan, a Kenyan NGO that describes itself as “an independent watchdog of the Global Fund”,66 and GTZ, a German government-affiliated technical cooperation enterprise.

At a more general level, the Global Fund appears to have made a palpable effort to utilize its website in accordance with its enunciated commitment to “operat[e] in a transparent and accountable manner.”67 The website is remarkably comprehensive, and was, in fact, the source from which much of the primary material for this article was drawn. It includes the text of its governing documents (the Bylaws and the Framework Document), information on grant commitment, disbursement and performance, meeting records of the Transitional Working Group and core governance structures—including substantial information on decision processes—and the technical criteria for evaluating grant proposals and performance. The Global Fund website also hosts the eForum, which is the online discussion component of the Partnership Forum process.68 2.3. Risk management and the deployment of P&I regimes

62 The Global Fund, Framework Document, Section VI.4,

<www.theglobalfund.org/documents/TGF_Framework.pdf>, visited on 9 June 2009 [hereinafter “Framework Document”].

63 The Global Fund, Competitive Bidding Process, <www.theglobalfund.org/en/lfa/selection/>, visited on 9 March 2009.

64 The Global Fund, Office of Inspector-General, supra note 58, para. 5. 65 The Global Fund, Country Coordinating Mechanisms: Conflict of Interest,

<theglobalfund.org/documents/ccm/CCMThematicReport06-ConflictOfInterest.pdf>, visited on 9 June 2009.

66 Aidspan, Homepage, <www.aidspan.org/index.php>, visited on 8 March 2009. Among other publications, Aidspan issues The Global Fund Observer, which sets out commentary and analysis on Global Fund in-country activities.

67 Framework Document, Section III.G; The Global Fund, How the Global Fund Works, <www.theglobalfund.org/en/how/?lang=en#7>, visited on 9 June 2009. See also the positive assessment in K. Buse and A.M. Harmer, Seven Habits of Highly Effective Global Public-Private Health Partnerships: Practice and Potential, 64 Social Science and Medicine (2007) pp. 262, 265.

68 The Global Fund, eForum 2008, <www.theglobalfund.org/EN/partnershipforum/2008/eforum/>, visited on 9 June 2009.

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As is evident from section 2.2, there are many ways in which the Global Fund differs from the traditional intergovernmental organization. These include the equal participation of non-state actors (institutionalized in the Board and in-country structures, and in a more general sense through the Partnership Forum and the website), the degree of informational transparency with which it operates, and the absence of formal in-country presence.

The throwback to Westphalian multilateralism, however, comes through in the Global Fund’s perception that P&I regimes are nevertheless necessary for the effective operationalization of its mandate.69 The Policy and Strategy Committee of the Board goes so far as to express the view that “P&Is are an important part of the Global Fund’s identity and risk management strategy.”70 Although perhaps not so strongly expressed at the time, this idea was attendant from the outset of the Global Fund’s operations. It accounts for the Trusteeship Agreement with the World Bank and the ASA with WHO. Since there was then no precedent for the extension of P&I regimes to something like the Global Fund, these arrangements were necessary in order for the organization to benefit—at least in theory—from the P&I regimes of the World Bank and the WHO.71

Currently, the Global Fund’s P&I regimes operate at two levels. First, the effect of the Swiss Headquarters Agreement and Executive Order 13395 is that the Global Fund and its officials (including Board members from non-state constituencies) are accorded the full range of privileges and immunities usually associated with international organizations in Switzerland and the United States. These include immunity from suit and all forms of legal process, tax and immigration privileges, and inviolability of property and premises.72 In other words, these are P&I regimes, classically rendered.

Second, the standard form programme grant agreement between the Global Fund Secretariat and the Principal Recipient seeks to replicate the substantive effect of certain privileges and immunities in implementer states. Article 4 binds the Principal Recipient to “try to ensure” that Global Fund grants are “free from taxes and duties imposed under laws in effect” in the implementer state. Article 28 excludes the Global Fund from liability for loss arising from programme implementation by the Principal Recipient. Article 29 commits the Principal Recipient to indemnify the Global Fund in the event of suit.73 It is probably fair to speculate, however, that compliance might be patchy, especially where the Principal Recipient is not affiliated to or does not have the necessary influence with the relevant national government.

At the time of writing, no information could be found that would suggest that the Global Fund or its officials had ever been subject to national litigation or legal process. This suggests that what animates the need to secure privileges and immunities is very

69 Although one might equally say that the need for P&I regimes may be interpreted as a function of

pragmatism, in that it is simply necessary on instrumental grounds to facilitate the work of the Global Fund. See note 11 and accompanying text, supra.

70 PSC Report GF/B18/4, supra note 17, p. 11. 71 Sullivan, supra note 26, p. 246. 72 Swiss Headquarters Agreement, Parts I and II; International Organizations Immunities Act, §§ 288a-d.

These compare to the list of privileges and immunities set out in the Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 1 U.N.T.S. 15 (entered into force 17 September 1946) [hereinafter “the 1946 Convention”].

73 The full text of the Global Fund standard form programme grant agreement is available at <www.theglobalfund.org/documents/lfa/BeforeGrantImplementation/Standard_Form_Grant_Agreement.pdf>, visited on 9 March 2009.

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much prudential, although as the references above to events in Senegal, Kenya and India show, the nature of Global Fund programmes does render national litigation a distinct possibility. The three key foci of liability exposure identified by the Secretariat in 2003 (the trust account moneys held by the World Bank, Global Fund property and assets other than the trust account, and the members of the Global Fund Board and Secretariat)74 are now addressed in the Swiss Headquarters Agreement and Executive Order 13395. Beyond Switzerland and the United States, the expansion of privileges and immunities is driven by the need to maintain the integrity of grant moneys in-country75—from the revenue jurisdiction as well as from suit—and to protect Global Fund staff on official business in-country. 3. Developing a Response

This section is structured as follows. First, it identifies some normative and doctrinal concerns that arise when P&I regimes are applied to global public-private partnerships such as the Global Fund. Second, it outlines why—despite these concerns, and apart from instrumental reasons alone—a coherent basis for the conferral of P&I regimes on global public-private partnerships is nevertheless necessary. Essentially, the argument put forward in this section is that an appropriate response should incorporate considerations of genesis and function, as well as administrative law-type analyses of institutional design. These would serve to identify which global public-private partnerships should benefit from P&I regimes, as well as the reach of such P&I regimes; blanket conferrals should, as far as possible, be avoided. 3.1. P&I regimes and the global public-private partnership structure 3.1.1. Concerns of a general nature P&I regimes, as such, almost always attenuate legal accountability.76 There is indeed some preliminary sense in national and regional case law that traditional international organization immunities are being rolled back.77 However, this development is nevertheless preliminary, and is limited largely to jurisprudential moves in Western European courts.78 By definition, immunity from domestic jurisdiction closes off a significant channel through which potential claimants may call to account organizations entitled to such immunity. Unless immunity is waived, or extraordinarily robust alternative accountability mechanisms are available,79 claimants may very well be left without 74 Report on Legal Status Options, Annex 2: Liability Considerations, supra note 27. 75 PSC Report GF/B18/4, supra note 17, p. 11. 76 This is quite apart from situations of abuse, criminality or corruption. See Wellens, supra note 18, D.C.

Esty, “Good Governance At the Supranational Scale: Globalizing Administrative Law”, 115 Yale Law Journal (2006) p. 1540, and the writings cited in note 18, supra.

77 Kingsbury et al, supra note 1, p. 41, citing Waite and Kennedy v. Germany, 18 February 1999, ECHR, 30 Eur. H.R. Rep. 261 (1999); see also R. Wilde, “Enhancing Accountability at the International Level: The Tension between International Organization and Member State Responsibility and the Underlying Issues at Stake”, 12 ILSA Journal of International and Comparative Law (2005-6) pp. 412, 413.

78 See, e.g., Waite and Kennedy v. Germany, supra note 77. 79 Here, it is worth noting that even the standard alternative dispute settlement clauses normally

incorporated in procurement contracts between international organizations and private contractors are

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effective remedy for actions in tort or contract in the kinds of situations referred to in section 1 above. These concerns are not particular to global public-private partnerships. They are endemic to the use of P&I regimes generally. However, this does not mean that these critiques are any less relevant for the purposes of the present analysis, since the Swiss Headquarters Agreement, the Swiss Host State Act80 and Executive Order 13395 demonstrate that the types of P&I regimes under consideration are precisely those that apply to traditional international organizations. In fact, one might plausibly argue that this is the nub of the issue: it would not do to abandon the bureaucratic monoliths of formal multilateralism so deliberately, only to reawaken some of their worst excesses in attempting to operationalize new global governance forms that are meant to be more transparent and efficient.

This is quite apart from the existing problems with pinning down the legal accountability of international organizations at international law, beyond the domestic legal order. To begin with, a coherent theory of the responsibility of international organizations is a question that remains wide open in existing international legal doctrine.81 There then remains the question of the appropriate forum; international organizations are not, for example, subject to the contentious jurisdiction of the International Court of Justice.82

3.1.2. Concerns specific to the global public-private partnership structure Non-state participation in the global public-private partnership structure creates particular legitimacy and accountability issues that are only compounded by the wholesale application of P&I regimes, for the reasons set out in the preceding section.

inadequate in this regard: see Y. Renouf, “When legal certainty matters less than a deal: procurement in international organizations” (Paper presented at Paper presented at the New York University Institute for International Law and Justice/University of Geneva Conference on Practical Legal Problems of International Organizations, University of Geneva, 20-21 March 2009), pp. 3–4, <iilj.org/GAL/documents/Y.Renouf-Procurement.pdf>, visited on 15 June 2009.

80 Supra, note 19. See especially Article 3 (Content), which lists, among other things, inviolability of the person, premises, property, archives, documents, correspondence and diplomatic bag, immunity from legal proceedings and the enforcement of judgments, and exemption from direct and indirect taxes as well as customs duties and other import taxes.

81 Although the UN International Law Commission has taken up this issue, work remains very much in progress: see UN International Law Commission, Analytical guide: responsibility of international organizations, <untreaty.un.org/ilc/guide/9_11.htm>, visited on 10 June 2009. Its work product also does not have the monopoly on the correct approach (see, e.g., the work of the International Law Association on the Accountability of International Organisations, <www.ila-hq.org/en/committees/index.cfm/cid/9>, visited on 10 June 2009), and has also been the subject of trenchant critique by, for example, José Alvarez (cited in the Special Rapporteur’s Fifth Report (A/CN.4/583), p. 8, <daccessdds.un.org/doc/UNDOC/GEN/N07/332/63/PDF/N0733263.pdf?OpenElement>, visited on 10 June 2009). See also A. Stumer, “Liability of Member States for Acts of International Organizations: Reconsidering the Policy Objections”, 48 Harvard Journal of International Law (2007) pp. 553–580 (arguing for an approach based on secondary or concurrent liability of the member states of an international organization).

82 International organizations “authorized by…the Charter” may request advisory opinions pursuant to Article 65.1 of the ICJ Statute, but there is no equivalent provision for contentious cases.

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When “legitimacy”83 is invoked as a basis of critique for global public-private partnerships, the specific nature of the charge is the lack of input legitimacy, and more specifically, democratic legitimacy. The argument is that global public-private partnerships lack such legitimacy because they differ from formal intergovernmental organizations in at least two ways: they are not constituted by a multilateral treaty based on state consent, and they permit the equal participation of non-state actors in decision-making processes.84 Both features apply in the case of the Global Fund. The theory underlying arguments of this variety is that “legitimacy will not be a major issue...where treatymaking occurs, because the decisionmaking authority lies largely with national officials with high levels of democratic legitimacy.”85 Here, different conceptions of “legitimacy” cut both ways: opening up the formal state-based international organization to NGOs, civil society and private actors attenuates the type of legitimacy critique levelled at the UN system for excluding non-state actors, but is equally problematic from the perspective of democratic legitimacy.

As to the accountability concerns, the formal incorporation of non-state participation in the global public-private partnership structure concurrently imports political “downward accountability” problems of the sort normally levelled at NGOs.86 In the global health governance literature, in particular, there is a rising sense that some global public-private partnerships both influence substantive policy87 and compete for resources in place of the intergovernmental organizations traditionally charged with executing the global health mandate. Critiques by Allyn Taylor and Lawrence O. Gostin are fairly typical of this view.88 Gostin, for example, argues that the Global Fund is one of “[a] relatively small number of global partnerships [which] currently wield considerable influence in setting the global health agenda.”89

Finally, from the perspective of existing international legal doctrine, the essential problem with applying P&I regimes to global public-private partnerships is rather like “the survival of a concept outside the framework of thought that made it a really intelligible

83 Suchman has defined “legitimacy” on a broad level to mean “a generalized perception or assumption that

the actions of an entity are desirable, proper, or appropriate within some socially constructed system of norms, values, beliefs and definitions”: see M.C. Suchman, “Managing Legitimacy: Strategic and Institutional Approaches”, 20 Academy of Management Review (1995) p. 574. In the specific context of supranational governance, Esty lists six types of legitimacy: democratic, results-based, order-derived, systemic, deliberative and procedural: Esty, supra note 76, p. 1515 et seq.

84 See, e.g., the type of arguments cited by S. Bartsch, “Global Public-Private Partnerships in Health: A Question of Accountability and Legitimacy”, <www.wsir.pwias.ubc.ca/2007/docs/Bartsch,%20Global%20Public-Private%20Partnerships%20in%20Health.pdf>, visited on 10 June 2009.

85 Esty, supra note 76, p. 1511. 86 K. Buse and G. Walt, “Global Public-Private Partnerships: Part II—What Are the Health Issues for

Global Governance?”, 78 Bulletin of the World Health Organization (2000) p. 705. 87 Attaran et al, supra note 12; E. Ollila, “Global Health Priorities—Priorities of the Wealthy?”, 1

Globalization and Health (2005) p. 6–10. 88 A.L. Taylor, “Public-Private Partnerships for Health: The United Nations Global Fund on Aids and

Health”, 35 John Marshall Law Review (2002) p. 401; A.L. Taylor, “Governing the Globalization of Public Health”, 32 Journal of Law, Medicine and Ethics (2004) pp. 500–508; L.O. Gostin, “A Proposal for a Framework Convention on Global Health”, 10 Journal of International Economic Law (2007) pp. 989–1008.

89 Gostin, supra note 88, pp. 990–1.

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one.”90 P&I regimes are generally theorized on the basis of a doctrine of “functional necessity,”91 so that their effective actualization presumes that states’ collective purpose is clearly articulated in the organization’s constituent instrument. Put another way, the theory is that member states permit exemptions from substantive domestic law or undertake to refrain from the exercise of domestic jurisdiction in order to permit international organizations and their functionaries the necessary space to execute their mandates.

This is not to imply that functional necessity theory is easily applied in practice.92 Determining the scope of “function” is one of the most contentious issues in the relevant national case law.93 However, there does appear to be a general sense in existing doctrine that the particular legal status of international organizations in the domestic legal order follows from the sovereign character of the individual actors constituting the collective.94 In cases where suit is brought against international organizations in the courts of non-member states, or where immunity is not otherwise regulated by a treaty obligation, non-exercise of domestic jurisdiction has sometimes been justified on the basis of some variation of delegated sovereignty or act of state doctrine.95

3.2. Why a coherent response is necessary

For the reasons set out in section 3.1, P&I regimes ought not to be extended to global public-private partnerships on instrumental grounds only. There are, however, cogent considerations that militate in favour of formulating appropriate national responses.

Implicit in the turn to various forms of privatization, outsourcing and public-private collaboration is a certain “loss of faith in the state.”96 This expression was used by Mark

90 This expression is somewhat recklessly pillaged from G.E.M. Anscombe, “Modern Moral Philosophy”,

33 Philosophy (1958) p. 6. 91 C.W. Jenks, International Immunities (New York, Oceana Publications, 1961); P.H.F. Bekker, The Legal

Position of Intergovernmental Organizations: A Functional Necessity Analysis of Their Legal Status and Immunities (Dordrecht; Boston, M. Nijhoff , 1994). The prototypical expression of “functional necessity” doctrine is in Article 105 of the UN Charter, which provides that “the Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.” These purposes are, of course, articulated in Article 2 of the UN Charter.

92 See, e.g., A.J. Miller, “Privileges and Immunities of United Nations Officials” International Organizations Law Review (2007) pp. 197–8.

93 For a survey of national approaches, see A. Reinisch, International Organizations Before National Courts (Cambridge, New York, Cambridge University Press, 2000).

94 “Since an international organization is brought into being by sovereign and independent states and is an association of states, it must be given a special status in relation to the exercise of jurisdictional and administrative authority by individual states”: Explanatory Report to Resolution (69) 29 of the Council of Europe on the Privileges and Immunities of International Organisations, cited in Bekker, supra note 91, pp. 100–1.

95 Two examples may be briefly noted here. In International Association of Machinists v. OPEC 649 F.2d 1354 (9th Cir. 1981), cert. denied, 454 U.S. 1163 (1982), the US Court of Appeals for the Ninth Circuit applied act of state doctrine to decline adjudicating on OPEC’s petroleum price-fixing activity, on the ground that this activity had a “significant sovereign component.” In Re EAL (Delaware) Corp 1994 US Dist. Lexis 20528 (D. Del. 1994), the US District Court for the District of Delaware dismissed a suit against Eurocontrol on the basis that it was a “foreign state” for the purpose of the Foreign Sovereign Immunities Act.

96 M. Aronson, “A Public Lawyer’s Response to Privatisation and Outsourcing”, in M. Taggart (ed.), The Province of Administrative Law (Oxford, Hart, 1997) p. 41.

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Aronson in relation to “the new public management” (“NPM”) in the domestic order, but is just as apposite in relation to the use of new governance structures within the global order. The increasing use of the global public-private partnership structure is driven by a number of reasons connected to the perceived failure of Westphalian multilateralism.97 Structural and normative critiques of international organizations are well-known, and will not be traversed again here; Eyal Benvenisti, for example, posits that formal treaty-based structures allow small domestic interest groups to control inter-state negotiations, giving them an avenue of “virtual exit” from national law that disfavours their economic positions.98

In the specific field of global health, writers like Kent Buse attribute the emergence of global public-private partnerships to disillusionment with the perceived culture, corruption and organizational bloat generally associated with the mammoth bureaucracies of modern intergovernmental organizations.99 More crucially, it would appear that national governments can no longer assure the effective delivery and financing of global public goods. Cooperation and buy-in from non-state actors, particularly private foundations, is no longer a bonus, but a necessity.100 The prime example, of course, is the Bill & Melinda Gates Foundation,101 which has pledged about USD 650 million to the Global Fund to date.102

In short, the turn away from traditional governance forms at the global level is probably just as irreversible as at the domestic level. While NPM is not yet the dominant paradigm, the Global Fund’s P&I regimes certainly indicate the type of issues likely to arise as other global public-private partnerships—such as the GAVI Alliance103—begin to make similar moves to ensure the effective operationalization of their mandates. 3.3. P&I regimes for global public-private partnerships?

The analysis in this section proceeds as follows. First, I suggest that considerations of genesis and mandate, together with an administrative law-type analysis of institutional design, can yield a useful framework for assessing which global public-private partnerships ought to benefit from P&I regimes in the absence of a clear expression of state

97 See, e.g., F.X. Perrez, “Public-private partnerships: a tool to evade or to live up to commitment?” (Paper

presented at the New York University Institute for International Law and Justice/University of Geneva Conference on Practical Legal Problems of International Organizations, University of Geneva, 20-21 March 2009), pp. 2-3, <http://iilj.org/GAL/documents/F.Perrez-PPPs-Environment.pdf>, visited on 15 June 2009.

98 E. Benvenisti, “Exit and Voice in the Age of Globalization”, 98 Michigan Law Review (1999) pp. 169–170.

99 K. Buse and G. Walt, “Global Public-Private Partnerships: Part I—A New Development in Health?”, 78 Bulletin of the World Health Organization (2000) p. 551.

100 M. Edwards and S. Zadek, “Governing the Provision of Global Public Goods: The Role and Legitimacy of Non-State Actors”, in I. Kaul et al (eds), Providing Global Public Goods: Managing Globalization (New York, Oxford University Press, 2003) p. 203.

101 Bill & Melinda Gates Foundation, Grants Overview, <www.gatesfoundation.org/grants/Pages/overview.aspx>, visited on 19 January 2009.

102 The Global Fund, Pledges and Contributions, <www.theglobalfund.org/en/pledges/?lang=en>, visited on 19 January 2009.

103 See supra, note 19.

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consent. Second, P&I regimes should be disaggregated to avoid promoting what Jenks called “the psychology of privilege”,104 since this would undermine a basic justification for the use of the public-private partnership structure.105 The objectives of this approach are twofold: first, to attenuate the concerns highlighted in section 3.1; and second, to cede the appropriate space within the domestic legal order to particular types of global public-private partnerships and their functionaries. 3.3.1. Identifying appropriate global public-private partnerships This element of the approach incorporates two cumulative aspects: first, considerations of genesis and mandate; and second, a qualitative assessment of institutional design based on concepts borrowed from administrative law.

As to the first, where a global public-private partnership is established to fulfil a public interest mandate, and may be traced to collective expression of political commitment, this would militate strongly in favour of permitting that entity the necessary privileges and immunities to operationalize that mandate. This argument applies a fortiori if that mandate is associated with UN Charter goals. As Singer argues, “international law does not permit lack of concern with (and certainly not active opposition to) the purposes of the United Nations and its specialized agencies.”106 In this way, a soft law obligation to support the work of a global public-private partnership goes some way toward substituting for a treaty obligation. In the case of the Global Fund, this requirement is satisfied: its origin is sited within the Declaration of Commitment on HIV/AIDS, and its mandate is closely linked with realizing Millennium Development Goal 6.

In this regard, Article 14 of the Swiss Host State Act, which identifies “other international bodies” upon which the Swiss Government may grant host State privileges, immunities and facilities, provides an interesting basis for comparison. Under this provision, “any other international body” may benefit from such privileges, immunities and facilities only “by way of exception”, and only if it satisfies the following requirements:

(a) it works closely with one or more intergovernmental organizations or international institutions based in Switzerland or with States in carrying out tasks which are normally the responsibility of those intergovernmental organisations, international institutions or States;

(b) it plays a key role in an important area of international relations; (c) it has wide recognition at the international level; and (d) the granting of privileges, immunities and facilities contributes substantially

to its mandate.107 As to the second, this draws on concepts from domestic administrative law. The

importance of avoiding simplistic domestic analogues cannot be overstated.108 However,

104 Jenks, supra note 91. 105 See text accompanying note 99, supra. 106 Singer, supra note 18, p. 72. 107 Swiss Host State Act, supra note 19. 108 Kingsbury et al, supra note 1, pp. 28, 54; C. Harlow, “Global Administrative Law: The Quest for

Principles and Values”, 17 European Journal of International Law (2006) p. 208; J. McLean, “Divergent Legal Conceptions of the State: Implications for Global Administrative Law”, 68 Law and Contemporary Problems (2005) p. 184.

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examining the ways in which domestic administrative law has responded to the challenge of private power performing public functions can be broadly instructive. Here, I refer to two particular kinds of domestic responses: common law judicial review of private or hybrid entities performing public functions,109 and legislating to bring these entities within the reach of administrative law, or at least, bind them to administrative law-type transparency and accountability mechanisms.110 There is a definite sense in these approaches that government through private or hybrid entities is not ipso facto immune from public scrutiny. Further, public scrutiny through judicial review is supplemented and supported by rules mandating decisional transparency and participation. These rules serve to reinforce the legitimacy and accountability of entities performing public functions at some remove from a direct statutory framework.

There are some discernible parallels with the self-imposed accountability mechanisms inherent in the institutional design of the Global Fund. Specifically, these include the internal oversight functions of the OIG, the concern with the participation of affected constituencies through the Partnership Forum, and efforts to ensure informational transparency through the Global Fund website. As Esty argues, administrative law-like mechanisms can have a significant compensatory function as regards deficits of legitimacy.111 3.3.2. Disaggregating P&I regimes Jenks’ phrase, “the psychology of privilege”, evocatively warns against the negative acculturating effect of P&I regimes. Further, an easy reliance on institutional design alone may incur the danger of what Stewart calls “administrative law-lite”: the use of internal, voluntarist administrative law-type mechanisms not actually rooted in strong legal accountability mechanisms. For these reasons, P&I regimes should be disaggregated even in appropriate cases. Above all, they should not be discussed as though they are indivisible, although most national privileges and immunities legislation is written that way.112

It is suggested that P&I regimes for global public-private partnerships should be strictly streamlined to purpose. In other words, the baseline would not be all of the privileges and immunities normally reserved for international organizations, but only those necessary to enable the global public-private partnership to carry out its mandate. In the case of the Global Fund, it is possible that grant money may be adequately safeguarded in 109 The decision in R v. Panel on Takeovers and Mergers, ex p Datafin plc, English Court of Appeal,

Queen’s Bench Reports (1987) p. 815 is paradigmatic. In that case, Datafin sought judicial review of a decision taken by the Panel on Takeovers and Mergers, arguing that the Panel had wrongly applied its own takeover rules. The Panel was a self-regulating body and had no direct statutory powers. However, the Court held that the Panel “was supported and sustained by a periphery of statutory powers and penalties”, and “operate[d] wholly in the public domain.” In the grey space between the two extremes of contractual and statutory “sources of power”, the Court held that “the nature of the power” could render an entity amenable to public law judicial review.

110 This is typified by the United States Administrative Procedure Act, which mandates that administrative agency decisions should be taken in conformity with procedures that would generate a publicly available administrative record: Administrative Procedure Act § 552; R.B. Stewart, “US Administrative Law: A Model for Global Administrative Law?” 68 Law and Contemporary Problems (2005) p. 74.

111 Esty, supra note 83, pp. 1521–1522. 112 Like the International Organisations Immunities Act, the approach in most Commonwealth jurisdictions

is to list the standard privileges and immunities in primary legislation, and to designate new organizations by executive order.

18

implementer states by the necessary tax privilege (thereby obviating the need for Article 4 of the standard programme grant agreement), and by immunity from execution, permitting national courts to pronounce on liability, but directing satisfaction from some other designated contingency fund. Global Fund staff would require facilitation of entry, as well as immunity from legal process in the course of their official functions. With respect to donor states, however, it is difficult to see why blanket conferrals of P&I regimes are necessary, especially if the key instrumental concerns are safeguarding the integrity of grant money, and ensuring the safety of Global Fund staff.

This attenuated, bespoke version of P&I regimes recalls the UNICEF Basic Country Agreement model, which confers only immunity from legal process and the benefit of repatriation facilities to UNICEF contractors in the field.113 It also corresponds with the rigorous threshold reflected in Article 14(d) of the Swiss Host State Act, which not only requires that the granting of privileges, immunities and facilities be connected to the mandate of the international body, but that it should “contribute substantially” to the fulfilment of that mandate. Indeed, a tailored approach to P&I regimes probably militates in favour of a series of carefully drafted bilateral—or at most, plurilateral—arrangements, under which donor and implementer states commit to accord the Global Fund the appropriate permutation of privileges and immunities in their respective jurisdictions.114 4. Conclusion If empirical assessments of the efficacy of global public-private partnerships are correct in the long run, and the confluence of political will and private wealth continue to favour this structure over formal multilateralism, then the question of P&I regimes for global public-private partnerships will become as commonplace—and as vexed—as it was, and continues to be, for traditional international organizations after 1945. This article has sought to elucidate one way in which P&I regimes might be adapted for the global public-private partnership structure, but the response posited here remains one that is essentially pragmatic and somewhat reactionary: it will be clear, for example, that the doctrinal issues set out in section 3.1 still remain. In addition, even in those areas where global public-private partnerships should benefit from legal immunity, it is evident that the conferral of such immunity would give rise to the same accountability issues that attend P&I regimes for international organizations.115

At a more theoretical level, the question of P&I regimes for global public-private partnerships rather leads one to suspect that the “collision” between classical doctrine and global governance invoked in section 1 may not in fact be a collision at all, but a mere symptom of broader and perhaps inexorable changes in the character of public international law and international organization. Seen in this context, it is critical to

113 A.J. Miller, “United Nations Experts on Mission and their Privileges and Immunities” 4 International

Organizations Law Review (2007) p. 34. 114 See also the discussion of Global Fund strategy on privileges and immunities, supra, note 17. 115 See the references in notes 18 and 77, supra, and the examination of internal, national and international

judicial accountability mechanisms in K. Wellens, Remedies Against International Organizations (Cambridge, Cambridge University Press, 2002) and K. Wellens, “Fragmentation of International Law and Establishing an Accountability Regime for International Organizations: The Role of the Judiciary in Closing the Gap” 25 Michigan Journal of International Law (2003-2004) pp. 1159–1181.

19

recognize that conferring P&I regimes on global public-private partnerships has some important conceptual effects. First, it regularizes the use of the public-private structure at the global level. Second, it modifies the traditional conception of international organization, as exemplified by the designation of the Global Fund as a “public international organization” in the United States for the purposes of the International Organizations Immunities Act. Finally, and more fundamentally, it raises some interesting questions about the concept of sovereignty, in regard to the way that immunity from domestic jurisdiction has normally been theorized and justified with respect to traditional international organizations composed primarily of states.116 Although these questions are no less urgent, the necessarily modest character of the current enterprise means that they must be reserved for another day: for now, the proposal is simply that indiscriminate regularization of the global public-private structure may (and should) be avoided by substituting legitimacy and accountability analyses for state consent, and by reducing P&I regimes only to the elements critical to function.

116 See the discussion in section 3.1.2, infra. “Sovereignty” is by no means an agreed concept: see, e.g., the

review of the relevant literature in D. Sarooshi, International Organizations and their Exercise of Sovereign Powers (New York, Oxford University Press, 2005) pp. 3–5. For the purposes of the present discussion, however, Judge Huber’s characterization of the concept, with its connotations of exclusive territorial jurisdiction, is still apposite: “Sovereignty in the relation between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organisation of States during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations”: Island of Palmas Case, 4 April 1928, PCA, Arbitral Award, p. 838, <untreaty.un.org/cod/riaa/cases/vol_II/829-871.pdf>, visited on 17 January 2009.

20

Fig 1. Core structures of the G

lobal Fund

C

OR

E STR

UC

TUR

E

FUN

CTIO

N

AC

TOR

S

NU

MB

ER

WH

EN C

ON

VENED

Foundation B

oard

Suprem

e governing body B

oard mem

bership is constituted as follow

s: 24 seats (20 voting; 4 ex officio non-voting)

The B

oard meets tw

ice a year.

Developed/donor states

note 1 (8 seats)

Germ

any, Canada, S

witzerland

EC

, Belgium

, Portugal, F

inland France, S

pain Italy Japan “P

oint Seven” group (D

enmark,

Ireland, Luxembourg, N

etherlands, N

orway, S

weden)

UK

, Australia

US

A

Private sector (1 seat)

Global B

usiness Coalition on

HIV

/AID

S, T

B and M

alaria (M

cKinsey &

Co

)

Private foundations (1 seat)

Bill &

Melinda G

ates Foundation U

nited Nations F

oundation F

ord Foundation

Clinton F

oundation O

pen Society Institute/S

oros F

oundation H

enry J. Kaiser F

amily F

oundation Levi S

trauss Foundation

Tides F

oundation A

merican F

oundation for AID

S

Rese

arch W

ellcome T

rust R

ockefeller Foundation

Donor voting block

(10 seats)

Provided for in Bylaws

Developing/im

plementer states (7

Implem

enter voting

Fig 1. Core structures of the Global Fund#

C

OR

E STR

UC

TUR

E

FUN

CTIO

N

AC

TOR

S

NU

MB

ER

WH

EN C

ON

VENED

seats)note 2

Foundation B

oard (cont’d)

E

astern Europe (B

ulgaria) E

astern and Southern A

frica (B

urundi) E

astern Mediterranean (Y

emen)

Latin Am

erica and the Caribbean

(Mexico

) S

outh East A

sia (Maldives)

Western and C

entral Africa (B

urkina Faso) W

estern

Pacific (C

hina)

NG

O from

a developed state (1 seat)

Health G

lobal Access P

roject

NG

O from

a developing state (1 seat)

African C

ouncil of AID

S S

ervice O

rganizations

NG

O representative of com

munities

living with H

IV/A

IDS

, tuberculosis and m

alaria (1 seat)

International HIV

/AID

S A

lliance

block (10 seats)

Ex officio non-voting m

embers (4

seats)

UN

AID

S (technical partner)

WH

O (technical partner)

World B

ank (trustee of Global F

und accounts) B

oard-designated Sw

iss citizen dom

iciled in Sw

itzerland (required under S

wiss law

by virtue of the G

lobal Fund’s legal status as a

Sw

iss private non-profit foundation)

No votes

Partnership Forum

A

kin to plenary body; forum

for stakeholders to express S

takeholders “that actively support the F

oundation’s objectives” U

p to 500 delegates at biennial

The G

lobal Fund describes

the biennial Partnership

C

OR

E STR

UC

TUR

E

FUN

CTIO

N

AC

TOR

S

NU

MB

ER

WH

EN C

ON

VENED

views on G

lobal Fund policies

and strategies (B

ylaws A

rt. 6.1). This includes

donor representatives, multilateral

development cooperation agencies,

states, civil society, NG

Os, technical

experts and the private sector.

Partnership F

orum

in-person meeting;

open-ended m

embership during

other events in the P

artnership Forum

process.

Forum

as a “process.” G

enerally, there are three com

ponents to the P

artnership Forum

: m

oderated online discussions for anyone w

ho w

ishes to contribute, periodic in-person m

eetings during a P

artnership Forum

year, and a final in-person plenary m

eeting for invited stakeholders.

Technical R

eview

Panel

Review

s grant applications for technical m

erit and makes

recomm

endations to the B

oard accordingly; contributes tw

o mem

bers to an independent A

ppeal Panel

that assesses appeals by unsuccessful grant applicants on the ground of “significant and obvious error” by the T

echnical Review

Panel.

Technical experts are appointed by

the Board for a m

aximum

of four funding R

ounds. Mem

bers of the P

anel have expertise in HIV

/AID

S,

tuberculosis, malaria and cross-

cutting issues. Appointm

ents are m

ade with a view

to achieving balanced gender, regional and sectoral representation. note 3

Up to 35 m

embers.

Contingent on the G

lobal F

und grant review process.

Secretariat M

anages the day-to-day operations of the G

lobal Fund.

Secretariat staff are appointed by

the Executive D

irector of the S

ecretariat based on Board-

approved policies and procedures.

Approxim

ately 470 staff

n/a; Secretariat

headquartered in Geneva.

Office of

Inspector-G

eneral

Internal oversight mechanism

established in 2005; the Inspector-G

eneral’s oversight extends to all aspects of the G

lobal Fund’s operations,

both at Secretariat level and

in-country.

The current Inspector-G

eneral is John P

arsons, formerly of

UN

ES

CO

.

n/a n/a

Other structures

Technical Evaluation R

eference

Advisory body established in

2003. Its province is broad, and includes m

aking

Appointed m

embers (9)

These are draw

n from stakeholders,

and may include practitioners,

9 appointed and 4 ex officio m

embers

note 4

At least one form

al annual m

eeting.

C

OR

E STR

UC

TUR

E

FUN

CTIO

N

AC

TOR

S

NU

MB

ER

WH

EN C

ON

VENED

Group

recomm

endations to the B

oard on the monitoring and

evaluation activities of the G

lobal Fund.

researchers, academics, donor and

implem

enter states, and NG

Os.

Ex officio m

embers (4)

Stop T

B P

artnership U

NA

IDS

R

oll Back M

alaria Partnership

Vice C

hair, Global F

und Policy and

Strategy C

omm

ittee

The inform

ation in this table was draw

n from T

he Global F

und, Governance Policies, <

ww

w.theglobalfund.org/en/governance/?lang=

en>,

visited on 9 March 2009 (including the relevant provisions of the B

ylaws and B

oard Operating P

rocedures); The G

lobal Fund, G

uidelines on C

onstituency P

rocesses, <

ww

w.theglobalfund.org/docum

ents/publications/other/C

onstituencyProcesses/C

onstituencyProcessesG

uidelines_en.pdf>,

visited on

9 M

arch 2009; The G

lobal Fund, B

oard Mem

bers, <theglobalfund.org/en/board/m

embers/?lang=

en>, visited on 25 F

ebruary 2009, and L.

Aspinall,

J. W

ittebrood and

J.A.

Tiendrebeogo,

Global

Fund G

overnance and

Constituency

Processes,

<w

ww

.theglobalfund.org/documents/partnersh

ipforum/2008/presentations/0812/C

1/3pm/P

F%

20pres.ppt>, visited on 25 F

ebruary 2009; The

Global F

und, Technical Evaluation R

eference Group, <

theglobalfund.org/en/terg/?lang=en>

, visited on 9 March 2009.

note 1 C

onstituency leadership determines w

ho actually holds the seat at the Board. W

here applicable, current constituency leaders are indicated in italics. A

rticle 7.2 of the Bylaw

s and para. 1 of the Board O

perating Procedures provide only that constituencies m

ay determine their ow

n processes for selecting their B

oard mem

bers. The G

lobal Fund S

ecretariat has issued more detailed guidance on the m

echanics of constituency

leadership selection:

see T

he G

lobal F

und, G

uidelines on

Constituency

Processes, A

ppendix 1

, <

ww

w.theglobalfund.org/docum

ents/publications/other/C

onstituencyProcesses/C

onstituencyProcessesG

uidelines_en.pdf>,

visited on

9 M

arch 2009. note 2

Six seats are based on the W

HO

regional groupings. There is one additional seat for A

frica. Detailed inform

ation as to which states

comprise these regional groupings is set out in T

he Global F

und, Guidelines on C

onstituency Processes, A

ppendix 1. note 3

The

current m

embers

of the

Technical

Review

P

anel are

listed at

The

Global

Fund,

TRP

Mem

bers, <

theglobalfund.org/en/trp/mem

bers/?lang=en>

, visited on 8 March 2009.

note 4 T

he current

mem

bership of

the T

echnical E

valuation R

eview

Group

is set

out at

The

Global

Fund,

TER

G

Mem

bership 2009

, <

theglobalfund.org/documents/terg/terg_m

embership_secretariat.pdf>

, visited on 9 March 2009.

Fig 2. Aspects of the G

lobal Fund grant-making process

# #

The inform

ation here is drawn from

The G

lobal Fund, C

ore Structures, <

theglobalfund.org/en/structures/?lang=en>

, visited on 26 February,

2009) and The G

lobal Fund, W

ho We Are, W

hat We D

o, <w

ww

.theglobalfund.org/en/publications/whow

eare/?lang=en>

, visited on 9 March,

2009.

The

current trustee

of the

Global

Fund

accounts is

the W

orld Bank.

Global

Fund Trustee

Global

Fund Board

Local Fund A

gent

Principal R

ecipient

Country

Coordinating

Mechanism

A

Country

Coordinating

Mechanism

is

a country

level partnership

meant

to com

prise public

and private

sector representatives

from

stakeholders. It

is responsible

for developing

and subm

itting grant

proposals based

on national priorities, and for

nominating

the P

rincipal R

ecipient that

will

implem

ent the

grant. A

fter a

grant is approved, the C

CM

is

tasked to

oversee grant

implem

entation.

The

Global

Fund

hires a

Local Fund A

gent in-country via com

petitive bid. The Local

Fund A

gent is usually an in-country branch of an auditing firm

: P

ricewaterhouseC

oopers and K

PM

G have both fulfilled this

function. T

he Local

Fund

Agent oversees, verifies and

reports to the Global F

und on grant perform

ance.

The P

rincipal Recipient receives grants, and im

plements in-country

programm

es pursuant

to the

grant. M

ore than

50%

of P

rincipal R

ecipients are

governments,

but the

remainder

of P

rincipal R

ecipients are

NG

Os,

faith-based organizations,

academic

institutions and private actors. The P

rincipal Recipient m

ay make

sub-grantsto

aS

ubR

ecipient.

contract

programm

e grant agreem

ent

IN-C

OU

NTR

Y O

FFSITE

Global Fund

Secretariat

Technical R

eview Panel

subm

its proposal through S

ecretariat

review

s proposal for technical m

erit; makes

recomm

endation to the B

oard

issues call for proposals

where appropriate,

approves funding for initial tw

o-year period

disburses grant

money direct to

Principal R

ecipient upon instruction from

Secretariat

Trusteeship A

greement

screens proposal for eligibility

hires Local Fund Agent;

negotiates and concludes program

me grant agreem

ent with

Principal R

ecipient

Fig 2. Aspects of the Global Fund grant-making process#